All Done and Dusted? Reflections on the EU Standard of Judicial Protection Against UN Blacklisting after the ECJ’s Kadi Decision

Hanse Law Review, Vol. 5, No. 1 (2009) pp. 99-114

16 Pages Posted: 9 Dec 2010 Last revised: 11 Mar 2018

See all articles by Franz Christian Ebert

Franz Christian Ebert

Max Planck Institute for Comparative Public Law and International Law

Valentina Azarova

Manchester International Law Centre (MILC), Manchester University Law School

Abstract

On 3 September 2008 the European Court of Justice (ECJ) handed down its decision in the joint cases of Kadi and Al Barakaat (C-402/05 P and C-415/05 P). With this decision the ECJ annulled Council Regulation 881/2002 implementing a UN Security Council Resolution on terrorist blacklists for not complying with the EU’s fundamental rights standard. It is clear now that EU legal acts implementing measures adopted by the UN Security Council do not escape the jurisdiction of the European judiciary. This raises a number of questions regarding the relation between EU law and international law, notably UN law. It equally highlights that the problems regarding the protection of listed individuals are far from being resolved. In the aftermath of the ECJ’s Kadi Decision, the EU institutions have adopted certain procedural changes of the blacklisting procedure, but the blacklists persist to remain in force and the applicants fail to be de-listed. The present article therefore analyses the concrete standard of protection of those whose names have been put on the lists. The analysis of the case law of the European judiciary indicates that the Council and the Commission are likely to be confronted with considerable problems if the amended blacklisting procedure is to come before the Courts once again. This concerns in particular the question of how much, and what kind of evidence must be submitted to the Courts. The difficulties in terms of implementing the UN blacklisting measures in EU law due to fundamental rights problems also underline the need to undertake a comprehensive reform of the blacklisting regime at the UN level.

Keywords: ECJ, Kadi, UN, United Nations, Black Lists, Human Rights, Smart Sanctions

Suggested Citation

Ebert, Franz Christian and Azarova, Valentina, All Done and Dusted? Reflections on the EU Standard of Judicial Protection Against UN Blacklisting after the ECJ’s Kadi Decision. Hanse Law Review, Vol. 5, No. 1 (2009) pp. 99-114. Available at SSRN: https://ssrn.com/abstract=1721702

Franz Christian Ebert (Contact Author)

Max Planck Institute for Comparative Public Law and International Law ( email )

Im Neuenheimer Feld 535
69120 Heidelberg, 69120
Germany

Valentina Azarova

Manchester International Law Centre (MILC), Manchester University Law School ( email )

Oxford Road
Manchester, M13 9PL
United Kingdom

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